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Obama may not impact Supreme Court balance

WASHINGTON (BP) -- Social conservatives lamenting a slew of Election Day losses might take solace in this: Barring a surprise retirement, the ideological makeup of the Supreme Court likely will remain the same for the next four years.

So says Liberty Counsel's Mathew Staver, who has argued two cases before the court and whose organization has filed about 30 briefs with it.

Only one of the justices -- liberal bloc-member Ruth Bader Ginsburg, who is 79 -- seems likely to retire, but that would not change the court's balance because her replacement by President Obama likely would be a liberal as well, Staver said.

"Absent some kind of unforeseen health complication" to one of the other justices, he added, "the Supreme Court would likely look the same" ideologically when Obama leaves office.

That would be great news for social conservatives, who view the high court -- and the courts below it -- as integral to their cause. Abortion was legalized by the Supreme Court in Roe v. Wade, a 1973 case social conservatives hope is eventually reversed. The justices might consider next year the legalization of gay marriage.

The reason the court could look the same in four years is simple: Justices typically time their retirement so that the party that appointed them gets to name their successor. President Clinton, a Democrat, nominated Ginsburg, and her replacement would be named by Obama, another Democrat.

Republicans nominated all five members of the court who are considered part of the conservative bloc. If they hold to tradition, the ones who are eyeing retirement will hold off in the hopes that a Republican will win the White House in 2016. Of the court's four-member liberal bloc, Clinton nominated two and Obama two.

Nothing, of course, is guaranteed, and surprise retirements do happen.

Liberal Justice Thurgood Marshall -- nominated by Democratic President Lyndon Johnson -- was forced to retire in 1991 due to poor health during the administration of Republican George H.W. Bush, who replaced Marshall with a conservative, Clarence Thomas. Marshall died two years later. Marshall had voted with the pro-Roe majority in 1973, and Thomas has since gone on record as opposing Roe.

Death also can have an impact. Former Chief Justice William Rehnquist passed away in 2005 while in office, although it did not have an impact on the court's ideological balance because he was nominated by a Republican (Richard Nixon) and his successor (John Roberts) was nominated by a Republican (George W. Bush).

"That's something that we certainly need to be in prayer about -- for the good health of the justices," Staver said.

Even if Obama doesn't change the ideological makeup of the nation's highest court, though, he'll still have a major impact on the lower court -- the appeals courts and district courts, Staver said.

"He'll have more of an impact on the court system than any previous president -- even if he appoints the same number [of judges as other presidents] -- because unlike any previous president, Obama appoints people who are ideologically in line with him," Staver said.

Other presidents, Staver said, appoint "some people who are ideologically in line with them" and some who "go off in a different direction" ideologically.

If Ginsburg is the only Supreme Court justice to retire in the next four years, then the high court potentially could be a major issue in the 2016 presidential race. That's because two members of the court's conservative bloc -- staunch conservative Antonin Scalia and swing vote Anthony Kennedy -- would be 80 that year. Kennedy, although a part of the conservative bloc for much of his career, has upset both sides of the spectrum. He voted to uphold Roe in the 1990s, then a decade later voted to uphold the federal ban on partial-birth abortion. He has sided with the liberal bloc on gay rights cases but with the conservatives on Ten Commandments cases. This year, he voted with the losing side that would have reversed the health care law ("Obamacare").

"Whether it's Republicans or Democrats, anybody who replaces Kennedy will definitely impact the future of the court," Staver said.

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